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New treaty strengthens performers' rights

August 2012

For the first time in over 60 years, the intellectual property (IP) rights of actors and other audiovisual performers have been expanded and comprehensively recognized in international copyright law. A new treaty concluded in Beijing on June 26, 2012, will strengthen the economic and moral rights of performers in their audiovisual performances. The Beijing Treaty on Audiovisual Performances – so named in honor of the city hosting the final negotiations – will enter into force upon ratification by 30 eligible parties, including countries and certain intergovernmental organizations. WIPO Magazine considers what this new treaty, over 15 years in the making, means to performers around the world.

Impact of the Beijing Treaty

The Beijing Treaty on Audiovisual Performances will strengthen the precarious position of many struggling film actors and other performers by providing a clearer international legal framework for their protection. It will give performers stronger economic rights and valuable extra income. Exactly how much will depend on how the treaty is put into national legislation and implemented. The Treaty provides a legal framework setting an expectation that countries that become party to it will pay for the use of foreign audiovisual performances, and encourage some or all of that revenue to go to the performers involved, the vast majority of whom earn very little.

For example, this could mean that when a film is reproduced, sold, rented or broadcast in a foreign country, some money would go to the country of origin and can then be shared with performers. “In the same way that writers and composers depend upon royalty income for their survival in the long term, performers around the world must benefit as well from the income from the exploitation of their works,” explained Academy Award-winning actress Meryl Streep in the lead-up to the Diplomatic Conference.

How a treaty enters into force

A treaty enters into force upon ratification by a prescribed number of eligible parties. Countries often sign a treaty upon its adoption. This constitutes a preliminary endorsement and demonstrates a country’s intent to examine the treaty domestically with a view to ratifying it. Signing a treaty, however, does not create a binding legal obligation to ratify it.

Ratification or accession by a state signifies its agreement to be legally bound by the terms of the treaty. Although accession has the same legal effect as ratification, the procedures differ. In the case of ratification, the state first signs and then ratifies the treaty. The procedure for accession involves a single step and is not preceded by an act of signature. Countries that have signed a treaty generally ratify it when their domestically required legal procedures have been fulfilled. Other states may begin the domestic approval process and accede to the treaty once their domestic procedures have been completed without having first signed the treaty.

The Beijing Treaty will also provide performers with protection in the digital environment, giving them some measure of control over how and when their works – their films and videos – are used on the Internet. “This is a pivotal time in the performers’ battle for IP protection, because of the increased variety and use of digital technology that makes producing, manipulating and disseminating an artist’s work so easy,” Ms. Streep observed.

The career and livelihood of actors “depend on the control of our performances and our image and likeness. Sadly, many actors do not have control of their performances and do not have the right to fair and equitable compensation for the use of their faces, bodies and voices,” said Segun Arinze, President of the Actors Guild of Nigeria. In many countries the Treaty will mean that the performances of actors in audiovisual works such as movies, television programs and pop music videos will be protected for the very first time.

WIPO Director General Francis Gurry says that
the Beijing Treaty is both a triumph for
audio-visual performers and a victory for
multilateralism. (Photo: WIPO/XU Zhen, 2012)

Mr. Liu Qi, Member of the Political Bureau of
the Central Committee of the Communist Party
of China and the Secretary of the CPC Beijing
Municipal Committee, described the Treaty as
the price of Beijing. “Respect for IP is a must,”
he said. (Photo: WIPO/Yuan Wenming, 2012)

“Digital technology and the Internet offer the promise of a global audience and the unprecedented availability of creative works. At the same time, they make creative works increasingly vulnerable to unfair exploitation,” explained WIPO Director General Francis Gurry. “The Beijing Treaty will enable performers to interact with greater confidence with the digital environment,” he said.

In addition to enhanced economic rights, the Beijing Treaty grants performers moral rights to prevent lack of attribution for or distortion of their performances. Actors and other audiovisual performers will also enjoy a minimum term of 50 years of protection compared to the 20-year term previously available under the 1961 Rome Convention (the Rome Convention) for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.

The Treaty effectively brings the rights of actors and performers into line with those available to musicians and recording artists under the WIPO Performances and Phonograms Treaty (WPPT) concluded in 1996. “The conclusion of the Beijing Treaty is an important milestone toward closing the gap in the international rights system for audiovisual performers,” Mr. Gurry said. “The international copyright framework will no longer discriminate against one set of performers.”

Actors welcome a landmark victory

For many actors around the world who have been driving the process, the conclusion of the Beijing Treaty is a historic landmark and an important turning point. “Finally… audiovisual performers are not second-class citizens. Along with audio performers, producers and authors, we are now recognized as having economic and moral rights over the content that we perform in,” said Australian actor Simon Burke. “It’s crazy that it hasn’t happened before, but it’s just so, so important that it has happened now,” he added. “It is something that is so right, so just and it’s finally coming true.”

“Actors all over the world will be actually able to keep on working and be protected when they work,” said Agnete Haaland, Norwegian actress and President of the International Federation of Actors (FIA). “We have been working for this for more than 20 years… to make it possible for actors to keep on acting and for the audience to actually have the privilege of seeing all kinds of films… all kinds of audiovisual content,” noted Benoît Machuel, cellist and representative of the International Federation of Musicians.

“This is a very exciting moment, I think, for actors around the world,” said Jean Rogers, Vice President of the British actors’ union, Equity. “This treaty will actually put on record how important our role is,” she said. “We interpret what people write. Writers have had these intellectual property rights, but audiovisual performers have not. But now, the future is starting to open up for us,” she said “and the value of performers is now being recognized.”

Chilean actress and representative of LatinArtis, Esperanza Silva, urged governments to implement the treaty as soon as possible, because “this treaty is going to benefit not only performers but the world’s culture in general.”

A victory for multilateralism

Not only does the conclusion of the Beijing Treaty represent a triumph for actors and other audiovisual performers, it is also a victory for multilateralism. “It is an affirmation of the relevance of multilateralism in general, and of multilateral rule-making in the field of intellectual property in particular,” Mr. Gurry said. This sentiment was echoed by delegations taking part in the discussions. “I have been impressed in listening to the concluding statements by the number of delegations who have underlined the importance of the Beijing Treaty and this diplomatic conference for multilateralism,” Mr. Gurry said in his closing remarks. “This is a great development for intellectual property. It will help us to deal with our ongoing normative agenda at WIPO in the spirit that has developed at this conference in Beijing,” he added.

As hosts of the Diplomatic Conference to conclude the Beijing Treaty on Audiovisual Performances, the Chinese authorities underlined the importance that China attaches to IP. “The Chinese Government has a very clear attitude and strong position on the protection of IP,” said China State Counselor Liu Yandong in her opening remarks to delegates. She said that China is “determined to step up its implementation measures to protect IP. We wish to establish a sound and effective IP strategy and system with a view to unleashing the dynamism of science and technology,” she said.

Beijing Deputy Mayor Lu Wei said that “the decision to entrust Beijing to host this Diplomatic Conference is a reflection of both trust in and honor to Beijing, which we will take as an opportunity to speed up our efforts in scientific and technological innovation, as well as in cultural innovation, and to constantly improve our systems for IP creation, management, protection and utilization.” The Beijing Municipal Government, he noted, “is strongly committed to improving the administration of IP rights protection and ensuring an enabling environment for innovation and creativity to prosper.”

The Beijing Treaty will enter into force when it has been ratified by 30 eligible parties, including countries or certain intergovernmental organizations. Some 48 countries signed the treaty upon its adoption, signaling their intent to seriously examine the treaty domestically and consider ratification.

From Berne to Beijing

The journey from Berne to Beijing spans some 120 years. The Berne Convention for the Protection of Literary and Artistic Works, concluded in 1883, marked the dawn of the international copyright system. It protects the IP rights of authors and artists in their creative works.

The development of a new industry around silent films and, soon after, talking pictures meant that, for the first time, performers - such as actors and singers - were being recorded, and their performances reproduced and widely distributed to audiences at home and abroad. The reach of these productions extended well beyond that of a live audience. This was one important reason for concluding the Rome Convention in 1961. While the Rome Convention provides protection for audio performers, it only offers audiovisual performers limited rights.

The conclusion of the WIPO Performances and Phonograms Treaty (WPPT) in 1996, and its subsequent entry into force in 2002, modernized international standards of protection for musicians in their sound performances. Audiovisual performers and their performances, however, remained largely unprotected by international law. The Beijing Treaty concluded in 2012, brings actors and other performers into the international fold, providing them with rights equivalent to those available to musicians and recording artists.

Beijing spirit: an inside view

On arrival at Beijing airport, Asia’s busiest, over 650 delegates participating in the WIPO Diplomatic Conference on the Protection of Audiovisual Performances in late June 2012 were warmly greeted by a team of Conference hostesses - part of an extensive group, including some 200 volunteers that worked behind the scenes to ensure the smooth running of this historic event.

Red and white banners and massive billboards announcing the Diplomatic Conference aligning the 32-kilometer stretch of highway from the airport to the city, and placed at other strategic locations, left no doubt that Beijing was to be the copyright capital of the world from June 20 to 26, 2012.

Our Chinese hosts worked around the clock to ensure that everything was in order for their international guests. The Conference took place at Beijing’s World Trade Center in a ballroom which just 72 hours prior to the June 20 opening was completely empty of conference equipment. Technicians worked tirelessly to ensure that the two conference rooms met United Nations conference standards, installing equipment that included sound-proofed interpreters’ booths, chairs, desks and microphones, as well as a number of huge screens so delegates could see the podium from every angle.

The high-level participation of Chinese government and municipal authorities was a clear indication of the event’s importance to the country. In the course of the week-long conference, key dignitaries visited the conference venue, including Mr. Wang Qishan, Vice Premier of the Chinese State Council and Mrs. Mrs. Liu Yandong, State Counselor, who also opened the conference as well as Mr. Liu Qi, Member of the Political Bureau of the Central Committee of the Communist Party of China (CPC) and Mr. Guo Jinlong, the Mayor of Beijing, both of whom participated in the closing ceremony. Over 130 local and foreign journalists registered to cover the Conference.

The 650-plus delegates from 156 WIPO member states, 6 intergovernmental organizations and 45 non-governmental organizations - the highest number in WIPO’s history – worked hard to lay the groundwork for the treaty’s adoption on June 26, 2012. Forty-eight countries signed the Beijing Treaty on Audiovisual Performances, and 122 delegations signed the Final Act – another record in the history of diplomatic conferences at WIPO.

The serious business of treaty-making was punctuated by some lighter entertainment, including a WIPO Award Ceremony and a dazzling concert, featuring artists from the five continents, held in the Great Hall of the People. The 3,000-strong audience was treated to a star-studded program including a guest appearance by award-winning actor Jackie Chan. Having completed their substantive work a day early, delegates also had an opportunity to visit the Great Wall of China.

With the new treaty adopted, delegates packed their bags to return home, passing once more through Beijing’s international airport. In the departure lounge, we passed an eye-catching billboard with the words “Beijing Spirit” - defined as “patriotism, innovation, inclusiveness, virtue”. The Diplomatic Conference certainly embodied the Beijing Spirit.